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SUPREME COURT OF INDIA
JAGDISH SINGH KHEHAR, S.A. BOBDE, JJ.
V. KRISHNAKUMAR – APPELLANT
VERSUS
STATE OF TAMIL NADU & ORS. – RESPONDENTS
CIVIL APPEAL No. 8065 OF 2009 With CIVIL APPEAL No. 5402 OF 2010
Decided On : 01-07-2015
(b) The Consumer Protection Act, 1986 – Section 21 – Respondents not subjecting the baby to mandatory screening between 2 and 4 weeks – Respondent no. 2 the hospital and respondent no. 3 and 4 the doctors were rightly held negligent and deficient in service by NCDRC. (Para 13)
(c) Consumer protection law – Medical negligence and deficiency in service – Baby girl rendered blind for whole of her life – Prospects of education, career and marriage very week – Compensation should be adequate – Multiplier method of computing compensation ruled out in such cases. (Para 14, 16)
(2014) 1 SCC 384; (2009) 6 SCC 1 – Relied upon
(d) Consumer Protection law – Medical negligence and deficiency in service – Compensation – Principle of restitutio in integrum – Means the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong – Compensation should take care of the sufferings of the baby and her parents and also to make a suitable provision for baby’s future – The middle class father has already incurred total expenses of 41,37,921/- – Adding compensation for prolonged physical, mental and financial hardships, of the baby’s parents a total of Rs.42,87,921/- with 6% interest directed to be paid to the baby’s father. (Para 18, 19 21,)
(2009) 9 SCC 221; (2014) 1 SCC 384; (1998) 4 SCC 39 – Relied upon
(e) Medical negligence – In case of victim crippled for whole life the effect of inflation must be taken care of – Compensation of Rs.1,38,00,000/- directed to be paid. (Para 25)
(1983) 462 US 523; (1982) 677 F.2d 1194; [1971] A.C. 115; [2012] UKPC 5 – Referred
Facts of the case:
On 30.8.1996, the appellant V. Krishankumar's wife Laxmi was admitted in Government Hospital for Women and Children, Egmore, Chennai. Against the normal gestation period of 38 to 40 weeks, she delivered a premature female baby in the 29th week of pregnancy. The baby weighed only 1250 grams at birth. The infant was placed in an incubator in intensive care unit for about 25 days. The mother and the baby were discharged on 23.9.1996. The baby was administered 90-100% oxygen at the time of birth and underwent blood exchange transfusion a week after birth. The baby had apneic spells during the first 10 days of her life. She was under the care of Respondent No.3 -Dr. S.Gopaul, Neo-paediatrician and Chief of Neo Natology Unit of the Hospital and Respondent No.4 -Dr. Duraiswamy of the Neo Natology Unit of the Hospital. The Respondent No.2 is the Director of the Hospital, which is established and run by the Respondent No.1 – State of Tamil Nadu under the Department of Health.
The baby and the mother visited the hospital on 30.10.1996 at the chronological age of 9 weeks. Follow up treatment was administered at the home of the appellant by Respondent No.4, the Government Doctor, Dr. Duraiswamy during home visits. The baby was under his care from 4 weeks to 13 weeks of chronological age.
A well known medical phenomenon that a premature baby who has been administered supplemental oxygen and has been given blood transfusion is prone to a higher risk of a disease known as the Retinopathy of Prematurity (hereinafter referred to as ‘ROP’), which, in the usual course of advancement makes a child blind was completely overlooked.
It is obvious that it did not occur to the respondents to advise the appellant that the baby is required to be seen by a paediatric ophthalmologist since there was a possibility of occurrence of ROP to avert permanent blindness. This discharge summary neither discloses a warning to the infant’s parents that the infant might develop ROP against which certain precautions must be taken, nor any signs that the Doctors were themselves cautious of the dangers of development of ROP.
Respondent No.3 attended to and examined the baby at his private clinic when the baby was 14-15 weeks and even then did not take any step to investigate into the onset of ROP.
In fact, the screening was never done.
The ROP was discovered when the appellant went to Mumbai for a personal matter and took his daughter to a paediatrician for giving DPT shots when she was 4½ months. That Doctor, suspected ROP on an examination with naked eye even without knowing the baby’s history. But, Respondent Nos.3 and 4 the Doctors entrusted with the care of the child did not detect any such thing at any time.
It was found that the ROP had reached stage 5. The appellant then learnt of Dr. Michael Tresse, a renowned expert in Retinopathy treatment for babies in the United States. The baby’s father obtained a reference from Dr. Badrinath, Chief of Shankar Netralaya and took his only child to the United States hoping for some ray of light. The appellant incurred enormous expenses for surgery in the United States but to no avail.
The NCDRC gave an unequivocal finding that at no stage the appellant was warned or told about the possibility of occurrence of ROP by the respondents even though it was their duty to do so. The NCDRC held that the respondents were negligent in their duty and were deficient in their services. It awarded a sum of Rs.5,00,000/- to V. Krishnakumar.
Finding of the Court:
Compensation of Rs.1,38,00,000/- Directed to be paid, in the form of a Fixed Deposit, in the name of Sharanya.
Result: Appeal allowed.
JUDGMENT
S. A. BOBDE, J.
These two Civil Appeals are preferred against the judgment of National Consumer Disputes Redressal Commission (hereinafter referred to as the ‘NCDRC’) rendering a finding of medical negligence against the State of Tamil Nadu, its Government Hospital and two Government Doctors and awarding a sum of Rs.5,00,000/-to V. Krishnakumar. Civil Appeal No. 8065 of 2009 is preferred by V. Krishnakumar for enhancement of the amount of compensation. Civil Appeal No. 5402 of 2010 is preferred by the State of Tamil Nadu and another against the judgment of the NCDRC. As facts of both the appeals are same, we are disposing the appeals by this common judgment.
2. On 30.8.1996, the appellant V. Krishankumar's wife Laxmi was admitted in Government Hospital for Women and Children, Egmore, Chennai (hereinafter referred to as the “Hospital”). Against the normal gestation period of 38 to 40 weeks, she delivered a premature female baby in the 29th week of pregnancy. The baby weighed only 1250 grams at birth. The infant was placed in an incubator in intensive care unit for about 25 days. The mother and the baby were discharged on 23.9.1996. A fact which is relevant to the issue is, that the baby was administered 90-100% oxygen at the time of birth and underwent blood exchange transfusion a week after birth. The baby had apneic spells during the first 10 days of her life. She was under the care of Respondent No.3 -Dr. S.Gopaul, Neo-paediatrician and Chief of Neo Natology Unit of the Hospital and Respondent No.4 -Dr. Duraiswamy of the Neo Natology Unit of the Hospital. The Respondent No.2 is the Director of the Hospital, which is established and run by the Respondent No.1 – State of Tamil Nadu under the Department of Health.
3. The baby and the mother visited the hospital on 30.10.1996 at the chronological age of 9 weeks. Follow up treatment was administered at the home of the appellant by Respondent No.4, the Government Doctor, Dr. Duraiswamy during home visits. The baby was under his care from 4 weeks to 13 weeks of chronological age. Apparently, the only advice given by Respondent No.4 was to keep the baby isolated and confined to the four walls of the sterile room so that she could be protected from infection. What was completely overlooked was a well known medical phenomenon that a premature baby who has been administered supplemental oxygen and has been given blood transfusion is prone to a higher risk of a disease known as the Retinopathy of Prematurity (hereinafter referred to as ‘ROP’), which, in the usual course of advancement makes a child blind. The Respondent No.3, who was also a Government Doctor, checked up the baby at his private clinic at Purassaiwakkam, Chennai when the baby was 14-15 weeks of chronological age also did not suggest a check up for ROP.
4. One thing is clear about the disease, and this was not contested by the learned counsel for the respondents, that the disease occurs in infants who are prematurely born and who have been administered oxygen and blood transfusion upon birth and further, that if detected early enough, it can be prevented. It is said that prematurity is one of the most common causes of blindness and is caused by an initial constriction and then rapid growth of blood vessels in the retina. When the blood vessels leak, they cause scarring. These scars can later shrink and pull on the retina, sometimes detaching it. The disease advances in severity through five stages -1, 2, 3, 4 and 5 (5 being terminal stage). Medical literature suggests that stage 3 can be treated by Laser or Cryotherapy treatment in order to eliminate the abnormal vessels. Even in stage 4, in some cases, the central retina or macula remains intact thereby keeping intact the central vision. When the disease is allowed to progress to stage 5, there is a total detachment and the retina becomes funnel shaped leadi
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